An article in the November 4 issue of Maclean’s by Kate Lunau describes the conflict between doctors and families over pulling the plug on very ill patients. Lunau uses the Supreme Court’s Rasouli ruling, in which the justices decided that doctors do not have the unilateral right to withdraw life support from a patient, to explore issues around Ontario’s Consent and Capacity Board. The Sunnybrook doctors who fought the case to put Hassan Rasouli to death still have the opportunity to appeal to the board, which still has the ability to decide who will and will not receive continued care.

The CCB, established 17 years ago as an independent tribunal, has been used more and more often to adjudicate between the opinions of the doctors and patient decision-makers (families, power-of-attorneys) when disagree on a course of treatment. It has 150 appointed members, a third of them psychiatrists, a third lawyers, and a third laypeople. A three-person panel decides on a patient’s fate within a week of the case being brought forward and judgments are issued within one day of the proceedings. The format of this tribunal appears questionable – the timeline for the proceedings is very quick, considering that someone’s life is at stake. It also seems unusual that psychiatrists and lawyers are given such a prominent place in the decision-making process. Might it be wise to have at least one person with special knowledge about the patient’s condition?

The decisions the panel makes are not limited to withdrawing life support from terminally ill patients. In 2007, the CCB decided to starve and dehydrate “Mr. C.D.” to death while increasing his pain medication (possibly making him unconscious), against the will of his devout Greek Orthodox wife. Mr. C.D. was an 81-year-old World War II veteran with a feeding tube in his stomach who was suffering from dementia, bedsores, and persistent infections.

This case suggests that life and death decisions may be too complicated for three panellists to handle in a short hearing. It appears from the article that Mr. C.D.’s death may have been brought about by dehydration and the denial of basic care rather than by the progression of the illness or an increase in painkillers. In deliberating on decisions made by doctors that seem to be unethically sound, such as death by dehydration and starvation, would it not be better to preserve life, especially if an appointed panel of three (and not an official judge) is rendering the decision? We are left with many questions: Were opinions from other physicians sought? Did the panel consider the physical suffering that withdrawing nutrition would cause the patient? What is the criteria used to determine the “best interests” of the patient?

Rasouli’s doctors wanted to bypass the CCB because they believed they had the right to decide on the fate of the patient. They are not alone. As Lunau reports, Joy Wawrzyniak, an Oshawa nurse, filed a lawsuit against two Sunnybrook doctors after they changed her father’s status from “full code” to “do not resuscitate” in case he had a cardiac arrest following the amputation of both his legs. He died without the CCB even having a say in the matter.

While some doctors may desire to play God, the CCB already has that “right” if families or doctors should ever come into conflict. It has been called a “death panel” (albeit approvingly) by Slate. In the United States, Obamacare critics have warned that a public health care system would lead to panels deciding on life and death for the patients, and in Ontario, we seem to have something like this. Without other health care options, patients have nowhere to turn if the public system denies them further coverage.

Unfortunately, while Lunau provides valuable information in her article illuminating the conflict between doctors and families, she fails to draw the connection between this phenomenon and the fact that there is no alternative health care system in Canada.

Pauline Kosalka writes regularly for The Interim.